Radical Rant: Will Legal States End Up Like D.C.?

These next four years are going to be very pivotal for the movement to end adult marijuana prohibition. Conservatives are in control of all three branches of government, including an attorney general who thinks good people don’t smoke marijuana.

The past few years under the Obama administration have been a period of rapid growth in the marijuana movement, particularly since the Cole Memo told the Department of Justice to keep its hands off the marijuana states. Those who attacked marijuana’s growing acceptance were relegated to the fringe of the political debate.

Now, those voices are elevated to the top offices in the land. Small, conservative, rural states that had cried out to no avail for enforcement of federal drug laws now believe they have the ear of the president they helped elect. If there is going to be a pushback against our successful marijuana reforms, the conditions have never beem better than they are now.

The federal government cannot enlist the states to enforce federal prohibition laws. The eight states that have legalized adult marijuana possession, the six* that have legalized cannabis cultivation and the rest that allow patients to possess marijuana and sometimes cultivate cannabis for medical purposes will still be able to maintain those laws.

Commercial marijuana retail and production, however, could be severely impacted by a willing federal government without expending much effort.

Remember that all state-legal marijuana is illegal federally because of a Supreme Court decision called Raich v. Gonzales.

In that decision, the court decided that a California woman using California tools in California soil with California water to grow California cannabis for personal medical use in California was subject to the federal ban on marijuana, which is based on the constitution’s Interstate Commerce Clause, because you can’t tell personal medical marijuana from illegal commercial marijuana. And even though she never even tried to sell medical marijuana over state lines for illegal adult use, the fact that it’s possible that she could—and we’d never be able to tell—means that if we don’t bust her, then everybody who illegally sells marijuana will claim it’s medical and that will affect the ban on interstate commerce.

Got that? Don’t worry, just get this: That’s how twisted a liberal Supreme Court got over personal medical marijuana. How do you think the current court, plus a Trump appointee, will rule on a challenge over the legality of marijuana commerce in some states affecting the banning of marijuana commerce in all others?

People have quickly forgotten that nobody knows if it is legal for state officials to be licensing or taxing marijuana commerce. The states have been doing it since the Cole Memo in 2013, and nobody has prosecuted them for that. The Rohrabacher Amendment from 2015 has since made it law that the Department of Justice cannot prosecute those acting in accordance with state marijuana law.

But it was only two years earlier, in 2011, when Washington’s then-governor Christine Gregoire line-item vetoed all the relevant sections that would’ve created a state-licensed medical marijuana system—a decision that haunts the patient community to this day. In her veto message, she specifically cited the possibility that state officials could face federal prosecution for aiding and abetting federal drug crimes.

A rescinding of the Cole Memo by the next attorney general, the expiration of the Rohrabacher Amendment in April and letters to the top regulators in the states that are licensing marijuana grows, processing and retail, warning of federal prosecution, could be all that it takes to bring the growth of the marijuana industry to a grinding halt.

With no licenses to operate and no taxes to pay, the marijuana businesses could continue operations, knowing they are too numerous for the DEA to raid them all. But consider that all these states still maintain criminal laws for people engaged in marijuana commerce without a license. It would then be up to the governor of each state to decide how much they’ll enforce the law.

In this worst-case scenario, legal marijuana states end up like Washington D.C., where everyone can grow and possess and share with each other, but no commerce is allowed (*wink*). But all of us who invested our time and money and futures in the Green Rush could be devastated and, in some cases, perhaps, federally prosecuted.

On the other hand, Trump might send out a tweet a 3 a.m. saying that he’s removing marijuana from the Controlled Substances Act and leaving the whole issue up to the states. These days, it seems like anything’s politically possible.

* No home grow in Washington, no home grow within 25 miles of a pot shop in Nevada.